IMPORTANT POINT
The absence of penetration is critical for a conviction under Sections 5(i) and 6 of the POCSO Act, but the presence of injuries can still lead to a conviction for aggravated sexual assault under Section 9(i).

JUDGMENT :

Judgment of the Court was delivered by M.S.RAMESH, J.

PRAYER: Appeal filed under Section 374(2) of CrPC, to set aside the judgment and conviction dated 11.09.2020 by the learned Sessions Judge, Special Court for Exclusive Trial of Cases under POCSO Act, Thoothukudi in Spl.S.C.No.191 of 2019 (Old Special Sessions Case No.6/2017) and acquit the appellant.

The appellant herein is the sole accused before the Special Court for Exclusive Trial of Cases under the POCSO Act, Thoothukudi, who has been convicted and sentenced to undergo life imprisonment for commission of an offence punishable under Section 5(i) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and to pay a fine of Rs.5000/-, in default, to undergo six months rigorous imprisonment. He is also sentenced to undergo rigorous imprisonment for three years for the offence under Section 506(ii) IPC and to pay a fine of Rs.3000/-, in default to undergo six months simple imprisonment, through a judgment passed in Special Sessions Case No.191 of 2019 dated 11.09.2020. This judgment is put under challenge in the present Criminal Appeal.

2. The brief case before the Trial Court as projected by the Prosecution are as follows:

(i) On 07.04.2016 at 07.30 PM, when the victim girl P.W.1, born on 18.06.2001 and aged about 15 years and 10 months, was going alone to attend a tuition class, the appellant/accused had snatched the hair of P.W.1 and dragged her into the bushes, after gagging her mouth with a towel and after causing scratch injuries on the face and thighs, had slapped P.W.1 on her left cheek. Thereafter, he had forcefully torn her clothes, squeezed her breasts and forcibly had sexual intercourse with her. He then had threatened P.W.1 to refrain from revealing the incident to anyone, failing which, he would kill her parents. Thereafter, he had left P.W.1 in the place of occurrence. P.W.1, after about 10 minutes, had left the place and went back to her house and informed both her parents about the incident.

(ii) The parents had then taken P.W.1 to the place of occurrence and finding nobody there, they had on the same day went to Eral Police Station. Therein, they were advised to approach the Women Police Station at Srivaikundam. Accordingly, they had reached the Srivaikundam Police Station at 3.00 AM of 08.04.2016 and P.W.1 had given a complaint (Ex.P1) at 4.30 AM of 08.04.2016.

(iii) P.W.1 was then taken to the Government Hospital and the incident was recorded in the Accident Register (Ex.P9) prepared on 08.04.2016 at 12.45 PM. The Doctor, P.W.11, who had examined P.W.1, had taken the vaginal and cervical smears and sent it to the Forensic Science Department for examination. In the Accident Register, the nature of injuries reveals, among others, that the hymen was not intact and there was no evidence of semen.

3. The Investigation Officer, P.W.13 had filed the charge sheet charging the appellant to have committed the offences under Section 5(i) r/w 6 of the POCSO Act and Section 506(ii) IPC, through a charge memo, which was taken on file on 18.06.2018. Before the Trial Court, while the victim girl was examined as P.W.1, the mother of the victim, who had accompanied the girl after the incident to the Police Station and the hospital, was examined as P.W.2. P.W.3 and P.W.4, who were claimed to have witnessed the girl returning after the incident, had turned hostile. The Doctor, who rendered first aid to the victim girl, was examined as P.W.5. P.W.6 and P.W.8 are the observation mahazar witnesses. P.W.7, Doctor had examined the accused and conducted the potency test, the report thereof was marked as Ex.P6. While the woman Police Constable, P.W.9, had taken P.W.1 for the medical treatment, the Head Constable P.W.10 had taken the accused for medical examination. P.W.11 is the Doctor, who had treated the victim girl and the Accident Register prepared by her was marked as Ex.P9. The forensic report on the smear test was marked as Ex.P10. The Head Cons